Torres v. Liang
Filed 2/10/09 Torres v. Liang CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
TOMMY TORRES et al., Plaintiffs and Respondents, v. WINSON LIANG, Defendant and Appellant. | C055934 (Super. Ct. No. 06AS02429) |
Defendant Winson Liang brings this pro se judgment roll appeal from the judgment entered in favor of plaintiffs Tommy and Terresa Torres, after he agreed to settle the case in open court and the judge entered the settlement terms into the minute order of those proceedings.
Liangs challenge to a written stipulation has no merit, and we shall affirm the judgment.
BACKGROUND
A
The Lawsuit And Settlement
The Torreses filed the instant complaint against their landlord, Liang and alleged (among other things) that Liang unlawfully evicted them from their rented residence, took their personal property from the residence (including the pink slip for their car), trespassed on the leased residence with a passkey, and deprived them of the quiet enjoyment of the property.
On the day set for trial, the parties announced that the matter had settled. The Torreses were represented by counsel; Liang represented himself. No reporters transcript of the proceedings is in the record. The minute order states: At this time counsel advised the Court that a settlement had been reached. The terms of the settlement are as follows: Judgment shall be entered in favor of the plaintiffs Tommy and Terresa Torres and against defendant Winson Liang in the amount of $60,000.00. Enforcement of this judgment is stayed as long as defendant makes payments to plaintiffs of $1,000.00 per month, beginning February 23, 2007. If defendant makes timely payments amounting to $40,000.00, then plaintiffs will dismiss this action and the judgment will be deemed satisfied. If defendant is in default of a payment over ten days, then plaintiffs may seek a writ of execution, ex parte, for the entire balance. [] The Court deemed this to be a court supervised settlement pursuant to the provisions of section 664.6 CCP.
A one-page, handwritten, undated Stipulation for Judgement in the record is virtually to the same effect. It states: 1. Plaintiffs shall have judgement against Winson Liang for $60,000 for all claims against defendant. [] 2. Enforcement is stayed so long as Liang pays $1,000/mos beginning 2/23/07. [] 3. If Liang pays $40,000 in timely payments, the action shall be dismissed and the judgement deemed satisfied. [] 4. If Liang misses a payment and fails to cure within 10 days, Plaintiffs upon ex parte application shall be entitled to issuance of a writ of execution on the entire balance and may proceed with collection. The stipulation is signed by Winson Liang and counsel for the Torreses.
B
Liangs Motion To Vacate The Settlement
On March 1, 2007, Liang moved to Vacate Settlement/Judgment. He argued an order vacating the judgment was warranted because the Torreses ill-treated the property during the lease and made unwarranted accusations against him, and because Liangs own attorney failed to truthfully and professionally represent[] him.
The Torreses opposed the motion, arguing (among other things), that Liang lacked standing to bring the motion because the court had entered his default, and the settlement is judicially enforceable pursuant to Code of Civil Procedure section 664.6.
The court conducted a hearing on Liangs motion to set aside the settlement, at which it heard Liangs testimony and argument, and after taking the matter under submission, denied the motion. That hearing was not reported.
Thereafter, the court entered judgment on the agreement as stated in open court and stated on the record, thereby encapsulating the minute order that recited the terms of the parties settlement agreement.
Liang appealed from the March 22, 2007 motion to vacate settlement judgment in this action and also from the judgment.
While the appeals were pending, he also sought relief from the judgment pursuant to Code of Civil Procedure section 473, on the ground that the stipulation agreement was the product of fraud and duress, lacked consideration, and was void for lack of consent. The trial court denied Liangs motion on the ground it lacked jurisdiction to consider the motion during the pending appeals. Liang also appealed separately from the courts denial of his motion to set aside the judgment.
DISCUSSION
Liang contends in his brief on appeal that the written stipulation is unenforceable because it fails comply with the statutory requirements of California Code of Civil Procedure [section] 664.6 and because it otherwise fails to satisfy the requirements of an enforceable contract.
I
Applicable Standards Of Review
On appeal, we must presume the trial courts judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he or she must support arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Liang is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself or herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the same restrictive procedural rules as an attorney].)
Because Liang provides us with only a clerks transcript of the proceedings, we must treat this as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Therefore, we must conclusively presume that the evidence is ample to sustain the [trial courts] findings . . . . (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)
II
Liang Has Failed To Show Error
All of Liangs claims of error challenge the adequacy of the written Stipulation for Judgement. Unfortunately for his appeal, its purported inadequacy is irrelevant because no written stipulation was necessary under the circumstances.
Code of Civil Procedure section 664.6 allows the court to enter judgment pursuant to the terms of the parties settlement of a pending lawsuit in either of two ways: if they agree in a writing signed by the parties outside the presence of the court or orally before the court . . . . (Italics added.)
Here, the judgment states that the parties agreement as to the terms of their settlement were stated in open court and stated on the record. The courts minute order of the proceedings at which the settlement was placed on the record (and which encapsulates its terms) is attached to the judgment, is consistent with the judgment, and nowhere suggests that the settlement was instead based on the parties written stipulation. Under these circumstances, the parties oral agreement to settlement of the lawsuit stated in open court or stated on the record is enforceable even had there been no written agreement. (Code Civ. Proc., 664.6.)
Moreover, because we have no transcript of the oral proceedings at which the settlement was stated on the record, we must presume in favor of the judgment that the oral statement of the settlement was properly done. We presume official duties have been regularly performed (Evid. Code, 664), and this presumption applies to the actions of trial judges (Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 [If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done]). Without a reporters transcript, we must presume the trial court properly orchestrated the recitation of the settlement on the record. (Cf. Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1355.)
Finally, we note that although Liang filed multiple notices of appeal, including an appeal from the trial courts denial of his motion to set aside the judgment (Code Civ. Proc., 473) while his appeal from the judgment was pending, he devotes no part of his brief on appeal to any contention other than that the written stipulation was deficient. Accordingly, we deem abandoned any other claims of error. (Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 133 [issues not raised in an appellants opening brief are deemed waived or abandoned], disapproved of on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292.)
DISPOSITION
The judgment is affirmed. Tommy and Terresa Torres shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
ROBIE , J.
We concur:
BLEASE , Acting P. J.
SIMS , J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
